9.  On 10 June 1996 the Plovdiv Regional Prosecutor’s Office, acting pursuant to a report from the state financial control authorities, which had audited a company whose chairperson the applicant had been, and reports by the economic police and by the company’s trustee in bankruptcy, decided to open criminal proceedings against the applicant. At that time the applicant was living in the United States of America, where he had arrived on 30 October 1995.
10.  On 20 June 1996 the applicant was charged in his absence with misappropriation of funds in large amounts, contrary to Article 203 § 1 in conjunction with Article 201 of the Criminal Code (“the CC”)(see paragraph 69 below). It was alleged that in March 1994, when he had been the chairperson of the board of directors of the above‑mentioned company, he had misappropriated 792,000 Swiss francs. Reasoning that the applicant was accused of a “serious” offence (see paragraph 73 below) and that he had gone into hiding, the investigator in charge of the case decided that, once apprehended, the applicant should be placed in pre‑trial detention. This decision was approved by the prosecutor in charge of the case.
11.  The applicant averred that, after having been notified by relatives that the Bulgarian media were circulating information that criminal proceedings had been opened against him and that he was wanted by the authorities, and after reading copies of newspapers brought by his wife in October 1996, he decided to return to Bulgaria.
12.  The applicant arrived at Sofia airport on 25 October 1996 and was immediately arrested, questioned and brought to the detention centre at the Plovdiv Regional Investigation Service.
13.  The following day, 26 October 1996, the applicant was apprised of the charges against him by an investigator and was questioned. The investigator confirmed the order for his detention pending trial.
14.  On an unspecified date the applicant’s lawyer requested the Plovdiv Regional Prosecutor’s Office to release the applicant, arguing that there was not enough evidence to prove that the applicant had committed an offence.
15.  The Plovdiv Regional Prosecutor’s Office denied the request in a decision of 21 February 1997. It reasoned that, since the applicant had been charged with a serious intentional offence, he had to remain in custody, as mandated by Article 152 § 1 of the Code of Criminal Procedure (“the CCrP”)(see paragraphs 72‑75 below). The exception provided for by paragraph 2 of that Article was not applicable, because the applicant could jeopardise the investigation in view of the number of impending investigative steps. The issues whether there was enough evidence to sustain the charges against the applicant and whether the applicant had committed other offences would arise after the conclusion of the investigation.
16.  The applicant’s lawyer appealed to the Chief Prosecutor’s Office, contending that there was no risk of the applicant absconding, committing an offence, or jeopardising the investigation. In particular, the applicant had returned from abroad of his own accord, despite the fact that he had known that a criminal investigation had been pending against him.
17.  The Chief Prosecutor’s Office dismissed the appeal in a decision of 3 April 1997. It reasoned that in view of the rule of Article 152 § 1 of the CCrP the applicant had to remain in custody. There was nothing to indicate that the applicant came within the exception provided for in paragraph 2 of that Article. In particular, no medical reports indicating bad health of the applicant had been submitted.
18.  On 26 April 1997 the applicant’s lawyer filed with the Plovdiv Regional Prosecutor’s Office a request for his release.
19.  On 3 May 1997 the applicant was also charged with abuse of office, contrary to Article 282 § 1 of the CC (see paragraph 70 below), in the context of a new investigation against him, and his pre‑trial detention was confirmed.
20.  On 6 May 1997 the Plovdiv Regional Prosecutor’s Office decided to release the applicant on bail. It reasoned that the full elucidation of the facts of the case necessitated the questioning of a witness who had absconded and was impossible to find. Hence the proceedings against the applicant had to be stayed pending the apprehending and the questioning of the witness. The applicant’s continued detention was therefore unwarranted and he was to be released against giving an undertaking to not leave town. Concerning the measure to secure appearance in the second proceedings against the applicant, the offence with which he had been charged – abuse of office – was not “serious” within the meaning of Article 93 § 7 of the CC (see paragraph 73 below) and detention was therefore not mandatory under Article 152 § 1 of the CCrP. The applicant could thus be released on bail.
21.  The applicant paid the bail on 6 May 1997 and was released the same day.
22.  It seems that almost no investigative actions were performed between 1997 and 2001.
23.  On 27 July 2001 the criminal proceedings against the applicant were stayed by decision of the Plovdiv Regional Prosecutor’s Office. It reasoned that it was necessary to question two witnesses whose whereabouts were unknown. The proceedings were to be resumed immediately after the two witnesses were tracked down.
24.  On 17 September 2003 the Plovdiv Regional Prosecutor’s Office dropped the charges under Article 203 § 1 of the CC, reasoning that, as certain witnesses could not be found and questioned, these charges could not be proven. It seems that the proceedings relating to the charges under Article 282 § 1 of the CC continued, and, as of the date of the latest information from the parties (31 January 2005), were still pending.
25.  From the day of his arrest on 25 October 1996 until he was released on 6 May 1997 the applicant was kept in the detention facility of the Plovdiv Regional Investigation Service.
26.  There the applicant was held in a cell measuring twenty square metres, which he had to share with three other persons during most of the time. There were no beds and the detainees had to sleep on the cement floor, which they covered with dirty blankets. During the six months and twelve days that the applicant spent in the cell the blankets were allegedly not changed or washed. The cell was illuminated by a single electric bulb. There was no window or access to sunlight. The airing of the cell was apparently very poor. During the winter the temperature in the cell was approximately 10‑12 degrees Celsius.
27.  Food, the quantity and quality of which were, according to the applicant, very insufficient, was served without cutlery, in plastic mugs which were apparently not washed between meals. It seems, however, that the applicant was able to have food brought from the outside.
28.  The applicant, as the other detainees, was allowed to go out of the cell for two to three minutes twice a day – in the morning and in the late afternoon – to go to the toilet. During the remaining time the detainees had to relieve themselves in a plastic bucket kept in the cell. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities.
29.  No possibility for spending time in the open or for physical exercise was provided. The detainees could only leave the cell when they received visits, were taken for questioning, or were taken to court.
30.  The applicant submits that there were periods of up to thirty or forty days during which he was not allowed to bathe. According to the Government, detainees were allowed to bathe once a week.
31.  In an action brought by a person detained in the same detention facility at the same time as the applicant, the Plovdiv Court of Appeals stated that the conditions in the facility were “a manifestation of cruel, inhuman and humiliating treatment, contrary to the absolute prohibition of ... Article 3 of the Convention”.
32.  Shortly after his release, on 22 July 1997, the applicant filed an action against the National Investigation Service under the State Responsibility for Damage Act (see paragraphs 76‑80 below). He alleged that the conditions of his detention had constituted inhuman and degrading treatment, imputable to the defendant which was in charge of the administration of pre‑trial detention facilities, and claimed 4,000,000 old Bulgarian levs (BGL)[1] as compensation for non‑pecuniary damage: pain, suffering and loss of self-respect. He described in detail the conditions of his detention and submitted that they had not been the result of a bias of the authorities against him, but an objective fact which had negatively affected all detainees for lengthy periods of time. These conditions had been violative of, inter alia, Article 3 of the Convention and Article 10 § 1 of the International Covenant on Civil and Political Rights of 1966.
33.  The Plovdiv District Court held its first hearing in the case on 15 October 1997. It declared the action admissible, instructed the applicant that he bore the burden of proof and invited him to produce evidence in support of his claim. It also invited the defendant and a prosecutor, who participated as a “special party” to the proceedings, to present their observations.
34.  The next hearing took place on 18 December 1997. The applicant requested that the director of the National Investigation Service be summoned as a witness and that an on‑the‑spot inspection be carried out in the detention facility and asked for leave to call four witnesses to prove the non‑pecuniary damage the applicant had sustained as a result of the conditions of his detention. Counsel for the National Investigation Service requested that the applicant appear in person to testify about the facts laid out in his statement of claim. She also requested that the Ministry of Finance be added as a defendant. The applicant insisted that the proper defendant was solely the National Investigation Service. The court ordered the applicant to appear for questioning. It denied the request to summon the director of the National Investigation Service, holding that the facts could properly be established through other evidence. It also denied the request for an on‑the‑spot inspection, holding that almost a year had elapsed since the applicant had been released and that the current state of the detention facility could not be used as a basis for establishing its state at the time when the applicant was kept there. The court gave the applicant leave to call three witnesses. It denied the request to add the Ministry of Finance as a defendant, holding that the entity against which the action had been brought was the National Investigation Service.
35.  By an order made in private on 23 January 1998 the court held that the complaint had been improperly characterised by the applicant as one under the State Responsibility for Damage Act. It held that the proper legal characterisation was under general tort law. Accordingly, in order for the proceedings to continue the applicant had to pay the requisite court fee (four per cent of the amount claimed, i.e. BGL 160,000) within seven days.
36.  The applicant did not pay the fee and the court discontinued the proceedings by an order of 12 March 1998.
37.  On 27 March 1998 the applicant appealed against the order to the Plovdiv Regional Court.
38.  On 29 June 1998 the Plovdiv Regional Court quashed the order and remitted the case to the Plovdiv District Court for continuation of the proceedings, holding that the proper legal characterisation of the facts alleged by the applicant was under the State Responsibility for Damage Act.
39.  The next hearing before the Plovdiv District Court was listed for 2 November 1998, but was adjourned because of the improper summoning of the defendant.
40.  On 15 December 1998 the applicant requested that the National Investigation Service be replaced as a defendant by the Plovdiv Regional Investigation Service and that the Ministry of Justice be added as a second defendant in view of legislative changes whereby the National Investigation Service was liquidated and the administration of the pre‑trial detention facilities was transferred from the National Investigation Service to the Ministry of Justice.
41.  On 8 December 1998 the applicant requested an expert opinion on the hygienic and sanitary conditions in the detention facility.
42.  The next hearing took place on 16 December 1998. The court granted the applicant’s request to replace the defendant and add a new defendant and adjourned the proceedings for 4 February 1999 in order to allow the new defendant to prepare.
43.  The next hearing was held on 4 February 1999. The prosecutor did not appear. Noting that there was no indication that the prosecutor had been duly summoned, the court decided to adjourn the case. On the motion of the applicant the court struck out the Plovdiv Regional Investigation Service as a defendant.
44.  On 9 March 1999 the applicant requested that the Ministry of Finance be added as a defendant, arguing that this was necessary in view of the unclear regulation of the succession between the National Investigation Service and the Ministry of Justice as regards the administration of the pre‑trial detention facilities.
45.  The next hearing was held on 10 March 1999. The court questioned one witness called by the applicant who testified about the conditions in the detention facility. The applicant reiterated his request for an expert report and asked leave to call two more witnesses. The court stated that it would rule on all motions in private.
46.  By an order made in private on 17 March 1999 the court denied the request for adding the Ministry of Finance as a defendant, holding that the facts alleged in the statement of claim did not point to a cause of action against it. It allowed the request for an expert opinion and invited the Plovdiv Hygienic and Epidemiologic Inspection to designate an expert who could draw up a report on the conditions in the detention facility.
47.  The next hearing, scheduled for 26 April 1999, failed to take place because of the improper summoning of the Ministry of Justice.
48.  On 27 April 1999 the applicant requested the court to revoke its order of 17 March 1999 as regards the refusal to add the Ministry of Finance as a defendant.
49.  The next hearing took place on 7 June 1999. The court denied the applicant’s request to revoke its order, holding that the Ministry of Finance had nothing to do with the subject‑matter of the case before it. The court invited the applicant to call the allowed witnesses. Pursuant to the motion of the defendant, the court also ordered the applicant to indicate specifically which government bodies and officials had, through their actions or omissions, caused the alleged damage.
50.  The court, sitting in private on 6 July 1999, appointed an expert to draw up a report on the hygienic and epidemiological conditions in the detention facility.
51.  A hearing listed for 20 September 1999 was adjourned because the judge in charge of the case was on sick leave.
52.  The next hearing was held on 2 November 1999. The expert informed the court that she could not draw up the requested report. The court gave leave to the Ministry of Justice to call one witness and replaced the expert. The court also instructed the applicant to rectify his statement of claim within seven days, holding that he had not specified which illegal actions or omissions of which officials had occasioned the damage he alleged to have sustained.
53.  On 11 November 1999 the applicant indicated that the officials allegedly responsible for these conditions were “the administration of the National Investigation Service”. Expressing his surprise that the court had not found this alleged omission in the statement of claim until the eighth hearing, the applicant requested that the judge withdraw from the case, averring that her conduct denoted bias against him.
54.  By an order of 18 November 1999 the court denied the request for withdrawal, holding that it had power to instruct the plaintiff to rectify its statement of claim during the entire duration of the proceedings before it and its having done so was not indicative of bias, but fully compliant with the rules of procedure. The court also discontinued the proceedings, holding that the applicant had not complied with its instructions to indicate the officials responsible for the conditions in the pre‑trial detention facility and their exact allegedly illegal actions or omissions.
55.  On 2 December 1999 the applicant appealed against the order for the discontinuation of the proceedings.
56.  On 1 March 2000 the Plovdiv Regional Court quashed the order and remitted the case, holding that the proper defendant in proceedings under the State Responsibility for Damage Act were the government bodies and not the specific officials alleged to have caused the damage. The instructions of the Plovdiv District Court had therefore been without purpose.
57.  On 16 March 2000 the Plovdiv District Court listed a hearing for 8 May 2000.
58.  On 2 May 2000 the applicant filed a “complaint for delays” under Article 217a of the Code of Civil Procedure (“the CCP”)(see paragraph 81 above) with the chairperson of the Plovdiv Regional Court, alleging that the Plovdiv District Court had not proceeded with due diligence in examining his action. The chairperson of the Plovdiv Regional Court dismissed the complaint on 11 May 2000, holding that the case had been adjourned many times because of changes in the legislation, the adding of new defendants and the making of evidentiary motions by the parties. The intervals between the hearings had been justified by the busy schedule of the panel examining the case.
59.  As between 2 and 11 May 2000 the case file was being transferred from the Plovdiv District Court to the Plovdiv Regional Court in connection with the examination of the above complaint, the hearing listed for 8 May 2000 did not take place.
60.  The next hearing took place on 26 June 2000. The court questioned two witnesses called by the Ministry of Justice, who testified about the conditions in the detention facility. The applicant reiterated his request for an on‑the‑spot inspection of the facility. The court invited the applicant to specify the facts which he wanted to have proven through the inspection. It also repeated its invitation to the applicant to call the witnesses for whom leave had previously been given.
61.  The last hearing took place on 2 October 2000. The court noted that out of three witnesses whom the applicant had been allowed to call, only one had actually been called. It further noted that the applicant had not complied with its instructions to concretise the facts which he intended to establish through the requested inspection of the detention facility. The court thus denied the request to carry out an inspection. It also excluded the requested expert report from the evidence.
62.  The Plovdiv District Court dismissed the applicant’s action in a judgment of 2 November 2000. It held, inter alia, as follows:
“... [The applicant] bears the burden of establishing the facts which are favourable to him. He was many times invited to do so by the court, but has not presented evidence about the conditions in the detention facility as a result of which he has allegedly suffered non‑pecuniary damage. Neither has he adduced evidence in support of the proposition that the damage which is the subject‑matter of the claim is in a causal connection with illegal actions or omissions of officials of the National Investigation Service, which participated in the administration of the pre‑trial detention facilities at the time when the applicant was in custody. Therefore the court considers that these facts have remained unproven. The court could not hold otherwise even if account is taken of the testimony of the witness [B.N.], because the witness and the [applicant] were not in the same cell ... It is true that that the witness testified about the conditions in the detention facility and the cell in which he had been, but ... his testimony does not establish the non‑pecuniary damage suffered by the [applicant], as averred in the statement of claim. Nor does it establish that the non‑pecuniary damage suffered by the applicant is a result of the conditions in the detention facility.
The court could not hold otherwise even if it takes into account the testimony of the witnesses [P.] and [I.], because in their testimony they describe the conditions in the detention facility and in the cell in which the [applicant] was kept, but do not establish the non-pecuniary damage claimed by the [applicant] and the fact that this damage is in a causal connection with the hygienic and material conditions in the detention facility.”
63.  On 15 November 2000 the applicant appealed against the judgment to the Plovdiv Regional Court. He reiterated his request for an on‑the‑spot inspection of the detention facility.
64.  On 28 February 2001 the Plovdiv Regional Court, sitting in private, gave the applicant leave to call one witness and denied his request for an inspection of the detention facility. It held that, since more than three years had elapsed after the applicant’s release, an inspection could not establish the conditions in the facility as at the time he was kept there.
65.  A hearing was held on 23 May 2001. The applicant did not show up and did not bring the witness for whom leave had been given.
66.  The Plovdiv Regional Court dismissed the appeal in a judgment of 22 November 2001. It held, inter alia, as follows:
“On the basis of the evidence adduced before this court and the court below, the [court] considers that the claim has remained unsubstantiated. The claim was for compensation for non‑pecuniary damage suffered by the [applicant]. However, apart from proof about the general state of the hygiene in the detention facility at the time of the [applicant’s] stay there, there is no proof about the specific damage suffered by him. The finding that the detention facility was in a poor hygienic condition does not per se lead to the conclusion that [the applicant] has suffered real moral, non‑pecuniary damage, because the objective fact of the hygiene and the regime in the detention facility has a subjective and very individual impact on persons with different mentalities and social status. Due to the lack of evidence about the specific effects which the conditions in the detention facility had on the [applicant], as averred in the statement of claim, the claim remains unsubstantiated. The non‑gathering of evidence about this is the result of the inactivity of the [applicant] alone. The witness called by him and questioned by the first‑instance court did not testify about the applicant’s condition during his stay in custody, and the other two witnesses for whom leave was given by the first‑instance court and the third witness for whom leave was given by this court were not actually called by the [applicant] without him specifying good reasons for this omission. In view of this the [court] considers that the [applicant’s] lack of procedural activity is tendentious and seeks to surmount the admissibility criteria for lodging an application with European Court of Human Rights...”
67.  On 20 December 2001 the applicant lodged an appeal on points of law with the Supreme Court of Cassation.
68.  The court listed a hearing for 18 February 2003. However, in November 2002 the CCP was amended, providing that appeals on points of law to the Supreme Court of Cassation were possible only in respect of actions where the amount in controversy was above BGN 5,000. Since the amount claimed by the applicant was BGN 4,000, the Supreme Court of Cassation discontinued the proceedings by an order of 28 November 2002, and the Plovdiv Regional Court’s judgment became final.